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Minorías y pueblos autóctonos

A diverse range of minorities and indigenous peoples exist across the world, and one thing they all have in common is that they often face discrimination, marginalisation and exclusion.

International human rights law, underpinned by the principle of equality, guarantees the right to education of everyone. And yet, minorities and indigenous peoples are likely to be denied their right to education. According to Minority Rights Group International (p.13), the majority of children who are out-of-school worldwide are minority and indigenous children. Minority and indigenous children are also regularly deprived of access to quality education that is relevant and responsive to their specific context and needs.

To this end, international human rights law identifies a number of individual and collective dimensions of the right to education. This includes the recognition that minorities and indigenous peoples require special measures vis-à-vis the realisation of their right to education. However, in order for the protections guaranteed by international law to be engaged, minorities and indigenous peoples must be able to claim minority or indigenous status.

While Article 27 identifies to which minorities the article applies, it offers no explanation as to what defines a ‘minority’. Any single definition would likely not capture the breadth of diverse minority groups that exist worldwide. However, certain common characteristics can be identified. In particular, minority groups often share the following:

A non-dominant or marginalised position, relative to the rest of the population

Ethnic, religious or linguistic characteristics distinct from those of the rest of the population

A desire to preserve their distinct culture, traditions, language and religion

In addition to the ‘objective' criteria in identifying minorities (as described in the list above) there is also a ‘subjective’ element: members must self-identify as belonging to an ethnically, religious or linguistically distinct group. This is important given the lack of formal definition but also because it prevents States from arbitrarily selecting to whom minority status is granted. It is also important to note that minority groups are typically numerically inferior to the majority population, but need not be to fit the definition.

Despite there being no agreed upon definition of the term ‘minority’, it is necessary to distinguish minorities from other social and marginalised groups. This distinction is important because the conferring of minority status engages a specific body of international law that addresses the particular context and rights of ethnic, religious and linguistic minorities.

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which was hard fought by indigenous peoples, contains no definition of the term ‘indigenous peoples’. This is by design. Indigenous peoples resisted the inclusion of a formal definition deeming it unnecessary and undesirable, instead stressing the importance of flexibility and self-identification.

“Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”

Indigenous peoples and minorities often share characteristics and the distinction between them is not always clear. Both groups:

Are usually in a non-dominant position

Their cultures, languages, or religious beliefs often differ from that of the majority

Commonly wish to retain and promote their identity

In some cases, minorities also have a strong and long-standing attachment to their lands. Minorities, however, do not necessarily have the long ancestral, traditional and spiritual attachment to their lands usually associated with indigenous peoples (OHCHR:2010:3).

In addition, indigenous peoples are not necessarily numerically inferior, for example, in Bolivia indigenous groups account for over half the population.

It is important to note that minority and indigenous status can often be overlapping, both between and within groups. Minorities can exist within indigenous peoples, for example, among ethnic and linguistic sub-groups. Minorities and indigenous peoples may also belong to other marginalised groups, for instance, persons with disabilities or women and girls - and can experience multiple forms of discrimination.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC) guarantee the individual right to education for everyone. However, individual rights, including the right to education, as expressed in the ICESCR and the CRC, whether exercised individually or in concert with others, do not always adequately address the specific context, concerns and needs of minorities and, in particular, indigenous peoples. Reflecting this, Article 30 of the CRC and Article 27 of the International Covenant on Civil and Political Rights (ICCPR) guarantee the specific right of persons belonging to minority and indigenous communities to enjoy their own culture, to profess and practice their own religion, or to use their own language, in community with other members of their group.

For indigenous peoples, education is one of the key ways in which cultural practices, languages and values are transmitted from one generation to the next. This requires that the right to education of indigenous peoples is formulated in a way that protects the group as a whole. The right to education therefore takes on an additional collective dimension, namely the right to control - or have a say in - how education is delivered: its content, methods, values, objectives, and language of instruction. Coupled with the right to self-determination, as guaranteed by Article 4 of the UN Declaration on the Rights of Indigenous Peoples, which states that indigenous peoples “have the right to autonomy or self-government in matters relating to their internal and local affairs,” this affords indigenous peoples the right of educational autonomy and includes the right to establish and direct educational institutions and education systems.

The accordions below explain the most common challenges that minorities and indigenous peoples face with regard to their right to education, including relevant provisions in international law. This list is by no means exhaustive.

The result of the challenges minorities and indigenous peoples face is not only that their right to education is not enjoyed, but also that the instrumental benefits of education are not gained. Education outcomes for minority and indigenous students are often inferior to the general population. As a result, minorities and indigenous children often encounter problems continuing education to higher levels and finding gainful employment.

Lack of good quality education perpetuates the cycle of exclusion and marginalisation; students cannot rise to key positions in the government or the labour market – including becoming future teachers - continuing the political and economic underrepresentation of minorities and indigenous peoples.

Furthermore, minority and indigenous children’s ability to enjoy other human rights is compromised. The right to education is a ‘multiplier right’, facilitating enjoyment of other human rights, such as: the right to freedom of expression, freedom from child labour and child marriage, and the right to health.

Minority and indigenous students are often subject to discrimination in access to quality education. State policies (whether official or de facto), such as the segregation of schools or classrooms, often effectively block minority and indigenous students from equal access to quality education. Examples include: apartheid in South Africa, racial segregation in the US, and the treatment of Roma in Europe and Dalits (low caste or ‘untouchables’) in India. In addition, de facto segregation that occurs as a result of social and economic disparities can be just as harmful as official policies. Both official and de facto discrimination in access education are prohibited under international law by the equality and non-discrimination clauses that are present in almost every human rights treaty, including:

Some States actively discriminate against minorities and indigenous peoples in textbooks and the curriculum, through the perpetuation of stereotypes and unfair or biased portrayals. These practices violate minority and indigenous students’ rights to education and non-discrimination, for instance Article 31 of ILO Convention 169 - Indigenous and Tribal Peoples requires: “Educational measures shall be taken (…) with the object of eliminating prejudices that they may harbour in respect of these peoples. To this end, efforts shall be made to ensure that history textbooks and other educational materials provide a fair, accurate and informative portrayal of the societies and cultures of these peoples.” More broadly, the UN Declaration on the Rights of Indigenous Peoples requires States to appropriately reflect the diverse cultures of indigenous peoples in education and public information and to take “effective measures to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous and all other segments of society” (Article 15).

States can also bar equal access to education by failing to establish quality schools within a reasonable distance from where minorities and indigenous peoples live. CESCR General Comment 13 states that physical accessibility is an ‘essential feature’ of the right to education. However, minority and indigenous students often live in rural and remote areas, resulting in long and unsafe journeys, which can deter students, particularly girls, from enrolling.

For minority and indigenous students the content and objectives of their education must be adapted to their needs. Some States operate a policy of assimilation by teaching students only in the majority or dominant language and omitting the teaching of alternative cultures, histories, traditions and languages. These policies effectively eradicate minority and indigenous culture and identity. They also negatively impact the academic performance of minority and indigenous students, particularly on standardised tests, which often presuppose that students are embedded in a particular culture and have knowledge of the mainstream language.

Human rights law, to an extent, mitigates potential assimilation by allowing individuals to establish educational institutions (seeEducational Freedom and International Law – Educational Freedom). However, what is at stake is assimilation of whole groups. This requires that indigenous peoples have a collective right to educational autonomy in order to ensure the continuing existence, development, and well-being of indigenous peoples as distinct communities. However, minority status, as yet, does not confer a similar collective right to education.

1. Education programmes and services for the peoples concerned shall be developed and implemented in co-operation with them to address their special needs, and shall incorporate their histories, their knowledge and technologies, their value systems and their further social, economic and cultural aspirations.

2. The competent authority shall ensure the training of members of these peoples and their involvement in the formulation and implementation of education programmes, with a view to the progressive transfer of responsibility for the conduct of these programmes to these peoples as appropriate.

3. In addition, governments shall recognise the right of these peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards established by the competent authority in consultation with these peoples. Appropriate resources shall be provided for this purpose.

Minorities and indigenous peoples often speak languages that differ from that of the majority or official language. As such, when minority and indigenous students are taught in a language that is not their mother tongue, evidence suggests that they are disadvantaged and their educational development is adversely affected. (See Magga et al.Indigenous Children’s Education and Indigenous Languages; see also articles by Tove Skutnabb Kangas.)

There is also evidence to suggest that minority and indigenous children are deterred from enrolling in schools and are more likely to drop-out because they do not speak the official language of instruction. It is therefore unsurprising that illiteracy is typically much more prevalent among minority and indigenous communities than the majority population.

The right to learn one’s mother tongue (whether it is the language of instruction or as a subject) is not just an issue affecting individuals, it affects whole groups. Language serves as the primary medium through which customs, values, culture as well as the language itself are transmitted from generation to generation.

It is important to note that mother tongue instruction does not necessarily mean that minority and indigenous students should not have the opportunity to learn and attain fluency in the dominant language. In fact, it is desirable that students become multilingual, enabling them to enjoy the benefits of mainstream education, and access to work, as well as maintain their linguistic heritage.

Article 8 requires States to undertake to make available, in relevant territories and at all levels of education, education in the relevant minority language, a substantial part of education in the relevant minority language or provide for the teaching of the relevant minority language. If a sufficient number of students request minority language education, States should apply at least one of the above measures.

Article 14 recognises that: “every persons belonging to a national minority has the right to learn his or her minority language”. Article 14 goes on to stipulate: “In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.”

At the international level, there are two treaties that guarantee language rights in education:

Article 28 states that indigenous children “wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective.”

However, this convention only applies to indigenous peoples and the number of ratifications is low (22 at present).

Article 5 provides: “It is essential to recognise the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language (…).”

Soft law provides strong standard setting on the issue of language rights in education, however both declarations are not legally binding:

Article 14 states: “Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

“States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.”

Article 4 says: “States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue.”

Assimilation; non-mother tongue instruction; the lack of adaptable education relevant to the student’s context and needs, in some cases may not be directly due to State policies but rather the lack of minority and indigenous teachers, the lack of teachers trained to deliver minority or indigenous language instruction, and the lack of adequate teaching materials. In these cases, it is the State’s inaction and failure to implement measures to ensure quality education for all. For instance, Article 27 of ILO Convention 169 requires that States provide adequate resources so that indigenous persons can establish educational institutions. Article 8 of European Charter for Regional or Minority Language requires that teachers be provided with training in order to teach minority languages, as does Article 12 of the Framework, which also guarantees access to textbooks.

For further reading on language rights, see Fernand de Varennes’s Academia.edu page for a list of relevant papers, as well as his article in the INTERIGHTS Bulletin Language Rights in Education.

In many countries, the rates of enrolment and completion among minority and indigenous children, especially girls, are lower than the rest of the population. One of the main reasons for this is poverty; minority and indigenous peoples also suffer from higher than average poverty rates. To survive, many families send their children to work instead of school (which is prohibited by Article 17 of the UN Declaration on the Rights of Indigenous Peoples) and those who do go to school are more likely to turn up hungry, tired or ill. In some instances, although education itself is provided for free, indirect costs, such as for textbooks, uniforms, transportation and school lunches, remain prohibitively high.

Minorities and indigenous peoples often lag behind the educational level of the general population. This can be attributed to a lack of quality education. Schools in minority and indigenous areas or that serve predominantly minority or indigenous students, are often of lower quality, poorly equipped, inferior in terms of infrastructure and served by the least-qualified teachers. This is because States spend, on average, less on minority and indigenous education than on mainstream education.

Minority and indigenous students are often subject to abuse, bullying, racism, and are more likely to be victims of corporal punishment and gender-based violence. In some instances teachers and persons in authority instigate such violence, or else they do nothing to prevent it.

As well as violence in schools, indigenous and particularly minority students face violence due to conflict. This is because most contemporary conflicts have had a racial or ethnic dimension. During conflicts and in the run-up to conflicts, minorities are often persecuted, systematically discriminated against and victims of hate-speech. In some conflicts, the curriculum and textbooks are used to incite hatred or to persecute minority students. Minority and indigenous children are also more likely to be recruited as child soldiers (which is expressly prohibited in international law - see International Instruments – Minimum Age of Military Recruitment).

To overcome marginalisation, achieve substantive equality (in addition to formal equality), and promote and protect cultural identity, States must refrain from discrimination and take positive measures to ensure educational equality. Such measures must be taken because of the specific nature of the right to education as applied to minorities and indigenous peoples. In addition, positive measures are often needed because minorities and indigenous peoples have often suffered historical marginalisation and discrimination, and as a result are especially vulnerable and therefore suffer disproportionately from human rights violations. Any special measures taken must take into account the unique situation and interests of the minority group in question. For instance, nomadic groups may require mobile or multiple school facilities.

It is important to note that inequality and discrimination do not occur in a vacuum. States must also address wider societal problems such as poverty, as well as education-specific problems. States must also promote respect and understanding of minority and indigenous peoples amongst the wider public, through human rights education and other suitable measures.

In order for the protections guaranteed by international law (see accordion below) to be invoked, minorities and indigenous people must be able to claim minority or indigenous status. Many countries, such as France, refuse to officially recognise minorities, particularly non-national minorities, often leading to further discrimination, exclusion and marginalisation.